Adi Morgan Developments (Lakeshore) Inc. v. Burlington (City), 2023 CanLII 36258

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 24, 2023

CASE NO(S).: OLT-22-004794

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Adi Development Group Inc. & Adi Morgan Developments (Lakeshore) Inc.

Subject: Minor Variance

Description: To permit a density of 254 units in a proposed 27 storey apartment building

Reference Number: 540-02-A-053/202

Property Address: 374 - 380 Martha Street

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-22-004794

OLT Lead Case No.: OLT-22-004794

OLT Case Name: Adi Morgan Developments (Lakeshore) Inc. v. Burlington (City)

Heard: March 9, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Adi Morgan Developments (Lakeshore) Inc. and Adi Development Group Inc.

D. Baker A. Clutterbuck

City of Burlington

C. Kapelos

B. Hurley (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND S. BOBKA ON MARCH 9, 2023 ORDER OF THE TRIBUNAL

1The Tribunal convened a Merit Hearing (“Hearing”) with respect to an appeal brought pursuant to section 45(12) of the Planning Act (“Act”) by Adi Morgan Developments (Lakeshore) Inc. and Adi Development Group Inc. (together the “Applicant”) in relation to the property municipally addressed as 374-380 Martha Street located in the City of Burlington (“subject property”) due to the refusal of a Minor Variance application (“MV”) by the Committee of Adjustment. (“COA”).

2The purpose of the requested Minor Variance is to introduce a total of 14 new dwellings units by changing the demising walls between units on storeys 24, 25, and 26 while requiring no changes to the exterior of the building.

3A total of 256 parking spaces for the proposed 254 dwelling units will be provided in seven (7) levels of underground parking. A variety of dwelling units ranging from one bedroom to three bedroom units will be provided.

4Legal Counsel from the City of Burlington attended the Hearing, confirmed the City’s support of the Minor Variance application and confirmed acceptance of the written and viva voce evidence of the Applicant’s planning witness as being consistent with the municipal staff report presented to the COA.

BACKGROUND

5The applicant received Site Plan approval on March 18, 2021, to construct a 27 storey apartment building with ground floor retail and 240 dwelling units.

6A building permit was issued on January 5, 2022 for the subject property and construction is underway.

7The Minor Variance application was deferred on August 17, 2022 at the request of the Applicant in order to provide additional information. On October 13, 2022 this additional information was provided to the City relating to the size of the proposed dwelling units, parking, traffic and a Section 37 agreement.

8On November 23, 2022, the COA considered an Additional Information Memo provided by City staff. This memo noted that the Planning Staff Report from July 22, 2022 in support of the application remained unchanged.

9The City Staff Report to the COA (found in Exhibit 2) concluded that the application satisfied the four tests for a Minor Variance; it stated:

The subject property is zoned DC-479, Downtown Core Zone, under Zoning By-Law 2020, as amended, Exception 479.

The minor variance request is to permit a density of 254 units instead of the maximum permitted density of 240 units.

1. Does the proposed minor variance(s) from the zoning by-law maintain the general intent and purpose of the Official Plan?

In review of the proposal staff are satisfied that the proposed development meets the intent of the City of Burlington Official Plan (1997) by providing high-density residential development within the Downtown area that can be supported via existing servicing.

2. Does the proposed minor variance(s) from the zoning by-law maintain the general intent and purpose of the Zoning By-law?

In consideration of the supplemental material provided by the applicant, staff are of the opinion that the proposed minor variance is in keeping with the intent of the City of Burlington Zoning By-law 2020.

3. Desirability:

The subject application has been reviewed in the context of existing and surrounding land uses as well as potential impacts affecting the orderly development of the property. These include matters related to Site Engineering and Transportation. None of the circulated agencies objected to the application. The proposed development is consistent with the intent of the Zoning By-law which allows for a mixed-use 27-storey apartment building. The proposal will add to the City of Burlington’s overall housing stock within the Downtown area. The surrounding area provides a host of services including retail stores, public transportation, access to public spaces (Waterfront Trail) within walking distances.

4. Minor in Nature:

The minor variances as contemplated by the application seek relief to the zoning by-law to allow for an increase to the total density of the property. As noted earlier in this report, there will be no changes to the exterior of the structure in terms of height, massing, or total area. The primary consideration for whether the proposed development meets the test of minor related to the increased number of trips generated from the site. The supplemental material provided by the applicant noted that the increased density would see a total increase of about 4%. During the morning peak hours, the change is anticipated to be increasing from 72 to 75 generated trips (both in and out of the property) and in the evening peak hours, the change is anticipated to increase from 86 to 89 generated trips (both in and out of the property). Aside from the above increase in the number of trips generated there are no other anticipated impacts as a result of the proposed increase in lot density from 240 dwelling-units to 254 dwelling-units. In consideration of the above, it is staff’s opinion that the requested minor variances to the City of Burlington Zoning By-law 2020 be deemed minor.

10The COA considered submissions from neighbours outlining concerns related to parking and traffic among other matters.

11On November 23, 2022 the COA motion to refuse the Minor Variance application resulted in a tie vote.

12The Applicant subsequently appealed that decision to the Tribunal.

LEGISLATIVE TESTS

13The Tribunal, in carrying out their responsibilities, shall have regard to, among other matters, matters of provincial interest as set out in s.2 of the Planning Act (“Act”).

14When making a decision relating to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision as set out in s. 2.1 (1) of the Act.

15A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with or shall not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) as set out in s. 3(5) of the Act.

16An appeal to the Tribunal pursuant to s. 45 of the Act is a hearing de novo. The Tribunal may authorize such minor variance from the provisions of the by-law as in its opinion meets each of the tests set out in s. 45(1) of the Act. The four tests under s. 45(1) of the Act require the applicant to satisfy the Tribunal that each variance:

1. maintains the general intent and purpose of the official plan,

2. maintains the general intent and purpose of the zoning by-law,

3. is desirable for the appropriate development or use of the land building or structure; and,

4. is minor.

SUBJECT PROPERTY AND SURROUNDING AREA

17The subject property has approximately 41.7 metres (“m”) of frontage on Martha Street and 40.6 m of frontage on Lakeshore Road East with a total lot area of 1,701 square metres.

18The surrounding land uses include, mixed-use commercial buildings, places of worship, high and medium density residential uses, offices, restaurants, and commercial uses.

PLANNING EVIDENCE

19Upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, the Tribunal qualified one witness, Andrew Ferancik (“Planner”) to provide expert opinion evidence in the discipline of land use planning. Mr. Ferancik’s Witness Statement was included in the Appellant Document Book.

20The Tribunal received and marked the following:

Exhibit 1: Appellant Document Book

Exhibit 2: Municipal Record.

Matters of Provincial Interest Planning Act

21The Tribunal heard evidence from Mr. Ferancik that the Minor Variance has had appropriate regard for the applicable matters of provincial interest under Section 2 of the Act, in particular items h, j, p, q, and r.

Provincial Policy Statement, 2022

22Mr. Ferancik provided evidence that the Minor Variance is consistent with the PPS in that the Minor Variance will:

• Facilitate growth within a settlement area (s.1.1.3.1);

• Provide new housing to efficiently use land and available infrastructure, support active transportation and transit services (s.1.1.3.2); and

• Contribute to the range and mix of housing options in the regional market area (s.1.4.1).

Growth Plan for the Greater Golden Horseshoe, 2022

[23] Mr. Ferancik provided evidence that the Minor Variance conforms to or will not conflict with the GP in that it will:

• Prioritize intensification in a strategic growth area to efficiently use land and infrastructure and support transit services (s.1.2.1);

• Support the development of a range and mix of housing options (s.1.2.1);

• Direct growth to the settlement area and a strategic growth area with existing municipal water and wastewater systems and existing transit (s.2.2.1);

• Contribute to the development of a complete community (s.2.2.1.4); and

• Contribute to the intensification of a strategic growth area within the delineated built-up area (s.2.2.2).

24Mr. Ferancik led the Tribunal through his analysis of the four tests for a Minor Variance pursuant to s. 45(1) of the Act, as they relate to this matter.

1. Halton Region Official Plan

25Mr. Ferancik provided evidence that the Minor Variance conforms with the general intent and purpose of the Halton Regional Official Plan (“ROP”) Amendment 48, the applicable ROP at the time of the submission of the application.

26Mr. Ferancik confirmed that there are no policies in the ROP establishing maximum residential density limits applicable to the subject property. Therefore, an Official Plan Amendment was not required.

27It was Mr. Ferancik’s stated opinion that the requested variance provides additional housing to support existing and planned transit services in the downtown and meets the general intent and purpose of the ROP.

Burlington Official Plan

28Regarding the Burlington Official Plan (“OP”), Mr. Ferancik provided evidence that a minimum density of 200 residents and jobs per hectare is planned in the ‘Downtown Mixed Use Centre’ (s.5.5.3 (b)) and that higher density development and intensification is encouraged (s.5.5.3 (c)).

29His evidence continued that, OPA No. 111, site-specific to the subject property, permits the development of a 27 storey mixed use building including a maximum floor area ratio which will be maintained by the proposal.

30Mr. Ferancik provided the opinion that the proposed variance provides additional housing within the City’s downtown while resulting in no exterior visual change nor any resulting physical impacts to the building and meets the general intent and purpose of the Burlington OP.

2. Burlington Zoning By-law

31With regard to the general intent and purpose of Zoning By-law 2020 (“ZBL”), Mr. Ferancik referred to the proposal as implementing “gentle intensification” and took the Tribunal through his zoning analysis of the Minor Variance. He stated that the request to increase the number of residential dwelling units from 240 to 254, will be entirely accommodated through internal changes to the building. No external changes to the building are necessary and there are no changes to the height, floor area ratio, or massing of the building. No additional zoning deficiencies are created by the addition of these fourteen (14) residential dwelling units.

32He provided that, the general intent and purpose of the site-specific ZBL is to provide for the development of a 27 storey mixed-use building that will intensify this pedestrian and transit oriented downtown site with a compact form of development that contributes to the range of housing options in the community.

33Mr. Ferancik provided his opinion that that the Minor Variance requesting the increase of fourteen (14) dwelling units meets the general intent and purpose of the ZBL by facilitating additional housing in a range of unit sizes within the same building envelope. The approved land use remains the same and the variance does not change any public realm elements, setbacks, building height, massing, or architectural features and meets the general intent and purpose of the ZBL.

3. Desirability

34Mr. Ferancik provided the Tribunal with his analysis related to the desirability of the development. He explained that the requested variance provides for additional dwelling units in downtown Burlington which is a pedestrian-oriented and transit-supported community. Further, that the proposed fourteen (14) new units are more attainable and contribute to the range of housing options in the community, while not requiring any perceptible change to the approved built environment.

35Mr. Ferancik provided his opinion that the variance is desirable as it will add new housing stock and contribute to the range of housing options within a walkable and transit-supported community, thereby, supporting its vibrancy and viability.

4. Minor

36Mr. Ferancik advised that his planning evidence was informed by the traffic opinion letter prepared by Scott Catton which evaluated the traffic impact of fourteen (14) additional units. Mr. Ferancik provided his analysis regarding whether he considered the variance to meet the test of being minor. He opined that the variance is minor, in that there are no exterior changes to the building and there will not be any unacceptable impacts to the operations of the surrounding road network, nor will the variance create any capacity issues for domestic water or wastewater systems.

37He further outlined in his planning evidence that to determine if a variance is minor requires an assessment of impact, and more specifically, whether an unacceptable adverse impact would arise from developing the lands with the proposed variance in place. In determining this, Mr. Ferancik considered that:

• The building GFA is maintained unchanged.

• The floor plan redesigns do not result in any changes to the overall building height, massing, projections, or articulations.

• No unacceptable adverse impacts on the provision of shared indoor amenity and shared outdoor amenity areas will occur based on the requested variance.

• The requested variance does not create negative traffic impacts on the boundary road network.

• A total of 256 parking spaces are provided which exceeds the required parking rate of one space per dwelling unit in the applicable ZBL for the development.

• The requested increase in dwelling units can be accommodated based on the available water, sanitary, and stormwater capacity.

• The Region of Halton confirmed in correspondence dated March 9, 2022, that there are no capacity issues for the Regional domestic water or wastewater systems resulting from the requested increase in dwelling units.

38Mr. Ferancik provided his opinion that the requested variance does not create any unacceptable adverse impacts to the development itself, or to surrounding lands, and is considered by him to be minor in nature.

39Mr. Ferancik confirmed that the minor variance application before the Tribunal is the same as was presented to the COA with no changes.

40Mr. Ferancik took the Tribunal to pages 2 and 3 of the Staff Report in the Municipal Report which included the following:

Condition:

1. Zoning Clearance certificate is required for the proposed new dwellings units.

Note:

1. Proposed new units are subject to Region, City and school Board DCs and park dedication fees.

41Mr. Ferancik indicated that the condition and note referenced in paragraph [40] above were standard requirements that the owner would be required to satisfy even if they were not imposed as conditions of the Minor Variance. Counsel for the City did not dispute this and took no position regarding the Tribunal imposing any conditions in the Order.

42Mr. Ferancik concluded that the requested Minor Variance:

• Has had appropriate regard for the applicable matters of provincial interest under Section 2 of the Planning Act;

• Is consistent with the PPS;

• Conforms to or does not conflict with the GP;

• Meets the general intent and purpose of the ROP;

• Meets the general intent and purpose of the OP;

• Meets the general intent and purpose of the ZBL;

• Is desirable;

• Is minor; and

• On this basis should be approved.

TRIBUNAL ANALYSIS AND FINDINGS

43The Tribunal accepts the uncontested planning opinion evidence of Andrew Ferancik in its entirety and finds that the Minor Variance meets all the relevant policy tests of s. 2 of the Act, the PPS, the GP, as well as all four tests for a Minor Variance, represents good planning and is in the public interest.

44The Tribunal has considered all the evidence including documents filed as well as submissions of the Parties. Upon the evidence, the Tribunal is satisfied that the Minor Variance application is approvable for reasons that include the following:

a. The subject lands are approved for the development of a 27 storey mixed-use building which is not proposed to change;

b. The 14 additional units will provide intensification as a range of housing unit types that are more attainable while not resulting in any changes to the exterior of the building nor changes to the site development;

c. The Minor Variance will implement a development and land use pattern that will make efficient use of land and infrastructure and provide for an appropriate scale of intensification;

d. The proposal is a transit supportive development located within a downtown context;

e. The Minor Variance promotes a compact built form integrated into both the existing community and adjacent land uses;

f. The variance to permit 14 additional apartment units will not result in any additional variances being required from the site-specific zoning provisions;

g. A parking standard exceeding the required zoning provisions will be achieved on the site; and

h. A negligible impact to current traffic operations on the surrounding road network has been demonstrated.

45The Tribunal has had regard to the decision of the COA, as well as the information and material considered by it.

46On the evidence the Tribunal is satisfied that no conditions for this Minor Variance are required.

ORDER

47THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 2020, exception 479, is authorized.

“Astrid J. Clos”

ASTRID CLOS

MEMBER

“S. Bobka”

S. BOBKA

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.